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Does an Estate Executor Have the Power to Sell “Real Property” Of the Deceased?
The first thing to consider is how “Real Property” is defined by California Probate Law. In Sacramento (and all of California), two types of property of the deceased exist: personal property and real property.
As viewed by the probate court, the difference between these two types of tangible property is that personal property is mobile, and real property (such as real estate) is not.
Anything the deceased owned, such as vehicles, sporting goods, household items, etc., can be moved and, therefore, usually is treated as personal property; on the other hand, real property is not movable and is generally fixed to the land it lies on, such as homes, structures or buildings of any sort. Therefore, any real property most always refers to “real estate” of some type.
If your deceased loved one didn’t plan and draft a living trust, etc., then when they die, their estate must go through the Sacramento probate process. The “executor” mandated to handle this process now must manage and distribute the estate, which often includes real estate; this may consist of the family home, office buildings, investment properties, and much more.
Here is where the probate process for real property may get complicated. Suppose your loved ones will be subject to the Independent Administration of Estates Act (IAEA). In that case, this Act can give the executor either full or limited authority to sell any real property and how they may do it. The act was designed to simplify this process and sometimes does.
However, whether the executor that manages these sales is given full or limited authority is the crucial deciding factor regarding how the executor can proceed. You must note that if you are to understand the full authority of this Act and how it affects your specific situation, you must have the advice and guidance of a skilled, experienced, and well-established Sacramento probate lawyer.
Regarding “Real Property,” What Is Full or Limited Authority?
Suppose the California court grants limited authority to the executor of your loved ones’ Will. In that case, they have the power to perform all acts allowed under the IAEA rules except Sell real property, exchange any real property, grant options to purchase real property, or borrow money with a loan secured by the real property.
Alternatively, if they have full authority, the executor can do anything they want with the real property (or real estate), including selling it, exchanging it, borrowing money against it, and more.
So, this becomes the real issue once again: whether the executor of your loved one’s estate has full or limited authority to act on their behalf without the courts or any heirs, family members, or beneficiaries’ approval.
Another vital thing to note is that if full authority is given to the executor to administer the decedent’s estate, the executor can wholly determine the price at which the property is sold. The real estate sale is commonly not subject to court supervision or the wishes of the heirs or family. Another serious factor is that California probate laws typically require that the sale price of the real property be at least 90 percent of the appraised value; this does not commonly hold if the executor has full authority over the estate.
However, the executor who manages the estate still has a fiduciary duty to the beneficiaries/heirs of the decedent to maximize the entire estate’s assets, much of which may be in the value of the real estate held.
As you may see, this is a complex area of Sacramento probate law, and to fully understand how you, as an heir or family member, can influence this process, the advice and experienced guidance of a Sacramento probate lawyer will be invaluable.
Even If Full Authority is Granted, Can I Challenge the Sale of Real
The simple answer is yes, you can, but you must have grounds to do so and, most importantly, professional help and advice.
If you are an heir or family member entitled to receive a Notice of Proposed Action before the sale, you have the right to object to it. You can do this by hand delivering or mailing a written objection to the executor (or personal representative) at the address in the notice.
Also, as the objecting family member or heir, you must request the probate court to order that the personal representative be restrained from selling the real estate without further court approval.
It must be pointed out that in cases like this, the court has broad powers to legally respond to the objection of a family member or heir. Initially, the Sacramento probate court must grant such a request without giving notice to the personal representative (or executory) and without cause being shown for the order.
When the court issues this restraint to move on with the sale and has received notice of written objections to the “Notice of Proposed Action,” then from that point on, court supervision is mandated before any further action on the real property is carried out.
This process, however, is highly complex. If you feel an objection is warranted, you must obtain the professional legal advice needed to succeed in halting the proposed sale, exchange, etc.
How can the Personal Representatives (or Executor) Authority Be Limited?
Each circumstance and probate case differs, but the court can decide to grant the personal representative full or limited authority under California’s probate law. However, many legal issues must be weighed, and documents (such as the Will) may influence this decision.
For example, If it is a large and complex estate with many complicated issues, the judge may usually only grant limited authority.
However, it’s not all up to the court, and if issues are suspected to arise or other complexities, the wisest thing to do is thoroughly go over your unique situation and consult with an experienced, aggressive, and knowledgeable probate lawyer to get the correct legal guidance.
Always remember that if the executor or personal representative has limited authority, court supervision is mandated and required to sell, exchange, or grant real estate or real property. This means that the executor has much less power to act autonomously and, therefore, do only what the court and family wish.
Real Estate is Involved in My Sacramento Probate; How Should I Proceed?
The probate process is always a challenging endeavor to get through, especially if you’re dealing with a large and complex estate and real estate is involved. The sale, exchange, or borrowing against any real property can be held up for months (or years), and the process can fracture families and more.
Therefore, if any real property is involved, you must enlist the professional services you need, and they will help to ensure that the entire distribution of the estate, including real property, is equitably and fairly done.
The Yonano Law Offices, P.C. have been settling and advising on complex probate issues for decades and will always work tirelessly to help you avoid all the common mistakes you will regret later on. Call them today at (916) 894-8790, and they will empathetically, thoroughly, and professionally answer and act on any real estate probate issues you may have.
